Plagiarism in the Supreme Court

Justice Mariano Del Castillo is being accused of plagiarism in not properly citing the scholarly authorities used in the decision in Viduya vs. Executive Secretary, which he penned. An ethics committee has been formed to investigate the matter, chaired by Chief Justice Renato Corona, with Justice Teresita de Castro as the working chair and Justices Roberto Abad, Jose Perez, and Jose Mendoza as members.

But did he actually copy the words of an article written by Mark Ellis, executive director of the International Bar Association, and passed them off as his own ? Mr. Ellis’ article, entitled “Breaking the Silence on Rape as an International Crime”, was published in the Case Western Reserve Journal of International Law and makes the case for considering rape as a crime against humanity, like piracy, genocide and other heinous offenses, and therefore “ subject to universal jurisdictions under customary international law”.

The Viduya ruling, in disposing of the claims of Filipino victims of Japan’s wartime policy of forcing women to work as sex slaves serving Japanese soldiers, held that the Philippines is under no obligation to assist in pursuing the comfort women’s claims. It essentially becomes a diplomatic issue. According to the Court, since “ The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign policy interests, and could disrupt our relations with Japan thereby creating serious implications for stability in this region”, the Court cannot compel the government to take up the cudgels for the victims. The petition was accordingly dismissed.

Although it may appear from a quick and superficial reading of the Ellis article and the Viduya ruling that they espouse differing views on how rape should be treated under international law, they are actually on the same page. Both seem to “ fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited under contemporary international law”. But it was precisely in explaining the immediately preceding quote that Justice Del Castillo might have sailed into intellectually dishonest waters.

In the decision’s footnote (no. 65) to the quoted sentence, Mr. Ellis noticed uncanny similarities with the words and structure of his article and was understandably concerned. Here he was, presenting his best arguments for rape to be considered as a crime against the whole world, and it was being used in a judicial decision which says that this just isn’t yet so. Both are correct, from each one’s perspective, but it was unfair for Mr. Ellis’ that his ideas would be so utilized. Not only was there no proper acknowledgment or attribution, his words were used to bolster a position which he was opposing. A bit like being “fried in your own lard”, to use a popular Filipino saying.

What is plagiarism ? A good working definition is provided by uslegal.com, as follows:

Intentional or unintentional use of another’s words or ideas without acknowledging this use constitutes plagiarism: There are four common forms of plagiarism:

– The duplication of an author’s words without quotation marks and accurate references or footnotes.
– The duplication of author’s words or phrases with footnotes or accurate references, but without quotation marks.
– The use of an author’s ideas in paraphrase without accurate references or footnotes.
– Submitting a paper in which exact words are merely rearranged even though footnoted.

But did Mr. Justice Del Castillo really lift words and phrases from Ellis’ work and pass them off as his own ? From where I sit, it looks like he did. It’s doesn’t jump out at you and one had best read the Ellis article and the Vinuya decision in full before deciding, but it seems Mr. Ellis has a point. Apart from verbatim phrases lifted from the article, the flow of Mr. Ellis’ ideas, or at least a significant part of them, appears to have been duplicated in the Vinuya decision.

We may grant that, as Justice Del Castillo said in his defense, there was no malicious intent in his inclusion of Mr. Ellis’ work and that these were mere “appendages” which would not have affected the final outcome even if they were removed. But the fact remains that he may have copied Ellis’ words without attribution and this is more than sufficiently damning. It all comes down to a question of integrity. If the Supreme Court can be dishonest in seemingly minor things, how can we expect it to be truthful and forthright on the bigger issues ?

If there’s plagiarism, shouldn’t there be some punishment? Can a law student interpose sheer inadvertence or mistake as a defense against plagiarism? If not, how much more a justice of the Supreme Court, whose opinion is published as a decision of the Court itself and deemed as part of the law of the land?

Justice del Castillo did not commit an error. He perpetrated a reproachable act of intellectual dishonesty unbecoming of a justice of the highest court of the Philippines. Therefore, the Supreme Court, in order to rescue its immaculate name and integrity before the country and the world, should immediately annul the decision in the Viduya case penned by Justice del Castillo as unbecoming and inconsistent with its highest standards, and immediately assign another Justice to write a new decision. This will serve as a precedent to save the honor of the Highest Court of the land and a lesson for future generations of aspiring justices to follow.